Caldwell v. United States of America

Filing 33

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Movant=s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 29) is GRANTED.IT IS FURTHER ORDERED that the sentence imposed on September 13, 2002 is VACATED.IT IS FURTHER ORDERED that an Amended Judgment will be entered in Movants criminal case, United States v. Timothy Caldwell, Case No. 4:01CR350 JCH. Signed by District Judge Jean C. Hamilton on 2/19/19. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TIMOTHY CALDWELL,

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Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

Case No. 4:12CV2249 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Movant Timothy Caldwell’s Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed May 25,
2018. (ECF No. 29).
BACKGROUND
On August 16, 2001, a federal grand jury returned a single count Indictment charging
Movant, a previously convicted felon, with unlawfully possessing a firearm that had traveled in
interstate commerce, in violation of Title 18, United States Code, Sections 922(g)(1) and 924(e),
the Armed Career Criminal Act (“ACCA”).

( S e e United States v. Timothy Caldwell, Case

No. 4:01CR350 JCH, ECF No. 1). Following a jury trial on June 27, 2002, Movant was found
guilty of being a previously convicted felon in possession of a firearm. (Id., ECF Nos. 41, 42).
The offense normally carries a maximum prison term of ten years.

See 18 U.S.C. §

924(a)(2). Here, however, the Presentence Investigation Report (“PSR”) alleged that
Movant qualified for a sentencing enhancement under the ACCA. Specifically, the PSR
alleged that Movant qualified for an ACCA sentence of a minimum of fifteen years, based
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on three prior Missouri convictions for violent felonies, specifically, second degree
burglaries. At the time, ACCA defined “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year” that (1) “has as an element the use,
attempted use, or threatened use of physical force against the person of another”; (2) “is
burglary, arson, or extortion, [or] involves use of explosives”; or (3) “otherwise involves
conduct that presents a serious potential risk of physical injury to another.”
U.S.C. § 924(e)(2)(B).

See 18

Those provisions, respectively, had come to be known as

ACCA’s “elements clause,” “enumerated clause,” and “residual clause.”

See United

States v. Booker, 240 F.Supp.3d 164, 167 (D.D.C. 2017).
At sentencing, neither the Government nor Movant objected to the Probation
Office’s conclusion that Movant was subject to a mandatory minimum of 15 years ’
imprisonment under ACCA. The Court adopted the finding, and sentenced Movant to 240
months’ imprisonment, followed by five years’ supervised release.

( S e e United States v.

Timothy Caldwell, Case No. 4:01CR350 JCH, ECF No. 47). On August 6, 2003, Movant’s
conviction and sentence were affirmed on appeal. See United States v. Caldwell, 339 F.3d 680
(8th Cir. 2003).
Movant filed his first § 2255 motion on September 1, 2004. (S e e Caldwell v. United
States, Case No. 4:04CV1183 JCH, ECF No. 1). This Court denied the motion and dismissed
M ovant’s claims with prejudice.

(Id., ECF No. 9).

Movant then filed a series of

successive motions, that were all denied.
On June 26, 2015, the United States Supreme Court held in Johnson v. United States, 135
S.Ct. 2551 (2015), that ACCA’s residual clause was unconstitutionally vague, and thus
increasing a defendant’s sentence under the clause violated the Constitution’s guarantee of due
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process of law. Johnson, 135 S.Ct. at 2557, 2563.1 The Court noted, however, that its decision
did “not call into question application of the [ACCA] to the four enumerated offenses, or the
remainder of the Act’s definition of a violent felony.” Id. at 2563.
In United States v. Naylor, 887 F.3d 397 (8th Cir. 2018) (en banc), the Eighth Circuit
considered whether, in light of Johnson’s invalidating the residual clause, convictions for
Missouri second-degree burglary fit within the ACCA’s enumerated clause, specifically, the
listed violent felony of “burglary”. 2

The Court ultimately concluded that Missouri’s

second-degree burglary statute encompasses conduct that is broader than generic burglary. Id.
at 407. As a result, under Naylor, convictions for Missouri second-degree burglary do not
qualify as predicate violent felonies for ACCA purposes. Id.
On April 6, 2018, the Eighth Circuit Court of Appeals granted Movant’s
petition for authorization to file a successive habeas application in this Court.
(S e e Caldwell v. United States, Case No. 4:12CV2249 JCH, ECF No. 27). As stated above,
Movant filed the instant § 2255 Motion on May 25, 2018, asserting that his sentence should be
reduced following the United States Supreme Court’s decision in Johnson, and the Eighth
Circuit Court of Appeals’ decision in Naylor.
DISCUSSION
28 U.S.C. § 2255 permits a federal prisoner to file a motion to “vacate, set aside or
correct” a sentence that “was imposed in violation of the Constitution or laws of the United
States”, or “was in excess of the maximum authorized by law.” Id., § 2255(a). As stated

1 In Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that the rule announced in Johnson is a
substantive one, and therefore applies retroactively on collateral review.
2 On January 4, 2018, on its own motion, the Eighth Circuit held Movant’s most recent application to file a
successive motion to vacate in abeyance pending the decision by the en banc court in Naylor. (See Caldwell v.
United States, Case No. 4:12CV2249 JCH, ECF No. 26).

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above, in the instant motion Movant maintains he is entitled to relief under the terms of § 2255
because he no longer qualifies as an Armed Career Criminal under ACCA, and thus cannot
lawfully be subjected to ACCA’s 15-year mandatory minimum. In other words, Movant asserts
that following Johnson’s invalidation of ACCA’s residual clause, and Naylor’s conclusion that
second-degree burglary does not qualify as a violent felony under ACCA’s elements clause, he
no longer has three qualifying crimes of violence.
The Government originally conceded that Movant appeared eligible for relief. (S e e
Caldwell v. United States, Case No. 4:12CV2249 JCH, ECF No. 31, the parties’ Joint Request
for an Amended Presentence Report regarding Motion to Vacate Sentence pursuant to 28 U.S.C.
§ 2255, P. 1). The Probation Office therefore prepared and issued a Resentencing Report and
Resentencing Recommendation on September 28, 2018.

(S e e United States v. Timothy

Caldwell, Case No. 4:01CR350 JCH, ECF Nos. 90, 91). Movant indicated his acceptance to the
revised PSR on October 22, 2018. (Id., ECF No. 92). For its part, however, the Government
noted in its response that during the pendency of this case, the Eighth Circuit decided Walker v.
United States, 900 F.3d 1012 (8th Cir. 2018), in which it held as follows:
On appeal, Walker now argues that his sentence should be vacated and the case
remanded for resentencing without application of the ACCA. He maintains that
his original sentence relied on the residual clause and points out that his Missouri
burglary convictions are no longer valid ACCA predicates under the enumeratedoffenses clause in light of recent decisions. See Mathis v. United States, ––– U.S.
––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016); United States v. Naylor, 887 F.3d
397 (8th Cir. 2018) (en banc). We review de novo the denial of a § 2255 motion.
Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir. 1992).
In authorizing Walker to bring a second motion, we necessarily determined that
he had made a prima facie case that he satisfied the requirements of § 2255. See,
e.g., Woods v. United States, 805 F.3d 1152, 1153 (8th Cir. 2015) (per curiam)
(explaining the requirements for authorizing a successive § 2255 motion). As
relevant here, § 2255(h) precludes a movant from bringing a successive motion
unless it contains “a new rule of constitutional law, made retroactive to cases on
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collateral review by the Supreme Court, that was previously unavailable.” In
light of the Supreme Court’s opinions in Johnson and Welch, we concluded that
Walker satisfied this threshold requirement.
This determination was preliminary. See Kamil Johnson v. United States, 720
F.3d 720, 720-21 (8th Cir. 2013) (per curiam). We have “emphasize[d] that the
district court must not defer to our preliminary determination in granting the
authorization as our grant is tentative.” Id. at 721 (alteration, citation, and
internal quotation marks omitted). The movant also must satisfy the district
court that his claim in fact “relies on” a new rule. Bennett v. United States, 119
F.3d 468, 470 (7th Cir. 1997) (“The movant must get through two gates before the
merits of the motion can be considered.”). The Government argues that Walker
did not make a sufficient showing that his claim relies on Johnson’s new rule that
the residual clause is unconstitutional, and it maintains that his claim in fact relies
on the Supreme Court’s non-retroactive decision in Mathis.
The original sentencing court did not specify whether the residual clause or
another provision of the ACCA, such as the enumerated-offenses clause, provided
the basis for Walker’s ACCA enhancement. Our sister circuits disagree on how
to analyze this issue. Two circuits have concluded that a claim for collateral
relief “relies on” Johnson’s new rule and satisfies § 2255 if the sentencing court
“may have” relied on the residual clause. United States v. Geozos, 870 F.3d 890,
896 (9th Cir. 2017); United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017).
To support this approach, the Ninth Circuit drew an analogy to the Stromberg
rule, which requires a conviction to be set aside when a general jury verdict may
rest on an unconstitutional ground. Geozos, 870 F.3d at 896 (citing Stromberg v.
California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931)). For its part, the
Fourth Circuit expressed concern about treating similarly situated defendants
differently on the basis of the sentencing court’s “discretionary choice not to
specify under which clause of Section 924(e)(2)(B) an offense qualified as a
violent felony.” Winston, 850 F.3d at 682.
By contrast, several other circuits instead require a movant to show that it is more
likely than not that the residual clause provided the basis for an ACCA sentence.
United States v. Washington, 890 F.3d 891, 896 (10th Cir. 2018); Dimott v.
United States, 881 F.3d 232, 243 (1st Cir. 2018), cert. denied, No. 17-1251, –––
U.S. ––––, 138 S.Ct. 2678, ––– L.Ed.2d ––––, 2018 WL 1243146 (June 25,
2018); Beeman v. United States, 871 F.3d 1215, 1221-22 (11th Cir. 2017). These
courts emphasize that a § 2255 movant bears the burden of showing that he is
entitled to relief and stress the importance of the finality of convictions, one of
Congress’s motivations in passing the Antiterrorism and Effective Death Penalty
Act. See Beeman, 871 F.3d at 1222-24; Washington, 890 F.3d at 896; Dimott,
881 F.3d at 236, 241-42.

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We agree with those circuits that require a movant to show by a preponderance of
the evidence that the residual clause led the sentencing court to apply the ACCA
enhancement. See Dimott, 881 F.3d at 243; Washington, 890 F.3d at 896;
Beeman, 871 F.3d at 1221-22. Under the longstanding law of this circuit, a
movant bears the burden of showing that he is entitled to relief under § 2255.
Kress v. United States, 411 F.2d 16, 20 (8th Cir. 1969) (per curiam). The mere
possibility that the sentencing court relied on the residual clause is insufficient to
satisfy this burden and meet the strict requirements for a successive motion. See
Washington, 890 F.3d at 896 (explaining why Stromberg should be confined to
general jury verdicts); Dimott, 881 F.3d at 241 (same). We also believe that
applying this “uniform rule” reasonably addresses the Fourth Circuit’s concerns
about the “selective application” of Johnson’s new rule. See Dimott, 881 F.3d at
242. As the Eleventh Circuit has explained, “It is no more arbitrary to have a
movant lose in a § 2255 proceeding because of a silent record than to have the
Government lose because of one. What would be arbitrary is to treat Johnson
claimants differently than all other § 2255 movants claiming a constitutional
violation.” Beeman, 871 F.3d at 1224.
Whether the residual clause provided the basis for an ACCA enhancement is a
factual question for the district court. See id. at 1224 n.5 (stating that the basis
for an enhancement is “a historical fact”). Where the record or an evidentiary
hearing is inconclusive, the district court may consider “the relevant background
legal environment at the time of ... sentencing” to ascertain whether the movant
was sentenced under the residual clause. Washington, 890 F.3d at 896; see also
United States v. Snyder, 871 F.3d 1122, 1129 (10th Cir. 2017) (explaining that
“the relevant background legal environment is, so to speak, a ‘snapshot’ of what
the controlling law was at the time of sentencing”), cert. denied, ––– U.S. ––––,
138 S.Ct. 1696, 200 L.Ed.2d 956 (2018). In some cases, the legal background at
the time of sentencing will establish that the enhancement was necessarily based
on the residual clause. See, e.g., United States v. Taylor, 873 F.3d 476, 482 (5th
Cir. 2017) (stating that precedent established that one of the requisite predicate
convictions “could have applied only under the residual clause”). By contrast,
“[i]f it is just as likely that the sentencing court relied on the elements or
enumerated offenses clause, solely or as an alternative basis for the enhancement,
then the movant has failed to show that his enhancement was due to use of the
residual clause.” Beeman, 871 F.3d at 1222. Moreover, as the Tenth Circuit
emphasized in Washington, it is not enough for Walker to show that “the
background legal environment at the time of Defendant’s sentencing reveals ‘the
residual clause offered the path of least analytical resistance.’” Washington, 890
F.3d at 898-99.
In denying Walker’s successive § 2255 claim, the district court did not determine
whether the residual clause led the sentencing court to apply the ACCA
enhancement. It also assumed—given the state of the law in 2016—that an
evidentiary hearing was unnecessary because Walker’s burglary convictions
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qualified as violent felonies even without the residual clause. Despite the sparse
sentencing record that exists in this case, “it is the function of the District Court
rather than the Court of Appeals to determine the facts.” See Murray v. United
States, 487 U.S. 533, 543, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). Thus, we
vacate the order denying Walker’s second motion and remand to the district court
to determine in the first instance whether Walker has shown by a preponderance
of the evidence that his successive § 2255 claim relies on Johnson’s new rule
invalidating the residual clause. The district court should proceed to the merits
only if Walker is able to carry his burden.
Walker, 900 F.3d at 1013-16 (footnote omitted). The Government thus asserted that pursuant to
Walker, Movant now bears the burden of showing he was sentenced as an Armed Career
Criminal under the residual clause, rather than the enumerated clause of the ACCA.
In his reply, Movant concedes that the record does not reflect whether his enhanced
sentence was based on the residual clause or the enumerated clause of the ACCA. This is
unsurprising, since Movant was sentenced prior to the Supreme Court’s invalidation of ACCA’s
residual clause in Johnson. This Court therefore had no need to announce whether it believed
Movant’s second-degree burglary convictions qualified as violent felonies because they
constituted “burglaries”, under the enumerated clause, or because they “otherwise
involve[d] conduct that present[ed] a serious potential risk of physical injury to another”,
under the residual clause.
Movant continues to assert, however, that the “relevant background legal
environment” at the time of his sentencing demonstrates he in fact was sentenced under the
residual clause. As support for this position, Movant notes that at the time of his sentencing, the
Eighth Circuit extensively relied on the residual clause to hold that Missouri burglary was a
qualifying predicate conviction. (See Caldwell v. United States, Case No. 4:12CV2249 JCH,
ECF No. 96, PP. 6-7 (“See, for example, United States v. Blahowski, 324 F.3d 592, 594-95 (8th
Cir. 2003) (concluding that burglary is a crime of violence because it “otherwise involves
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conduct that presents a serious potential risk of physical injury to another,” i.e., because it
satisfies the residual clause); See also United States v. Mohr, 382 F.3d 857, 860 (8th Cir. 2004)
(“Our court has reasoned that since burglary always creates a ‘serious potential risk of physical
injury to another,’ it qualifies as a crime of violence.”), cert. granted, judgment vacated, and case
remanded on other grounds sub nom. Mohr v. United States, 542 U.S. 1181 (2005); “[A]ttempted
second-degree burglary poses such a ‘serious potential risk of physical injury’ that it qualifies as
a violent felony under the otherwise clause of section 924(e).” United States v. Hascall, 76 F.3d
902, 904 (8th Cir. 1996) (attempted second degree burglary posed a serious risk of physical injury
under the definition in § 924(e), citing United States v. Solomon, 998 F.2d 587, 590 (8th Cir.
1993)). In United States v. Nolan, 397 F.3d 665, 666 (8th Cir. 2005), the Eighth Circuit noted
that “[w]e have consistently held that burglary is a predicate offense under § 924(e) and U.S.S.G.
§ 4B1.2.”)).
Upon consideration, the Court finds Movant has met his burden of showing by a
preponderance of the evidence that it was the residual clause that led the sentencing court to
apply the ACCA enhancement.

See Walker, 900 F.3d at 1015. As noted above, Movant

provides ample evidence that the relevant background legal environment at the time of his
sentencing establishes he was sentenced under the residual clause invalidated by Johnson. The
Government offers no rebuttal to this evidence, and so the Court finds Movant is entitled to
relief.3

3 This Court further agrees with the dissent in Walker, which opined that a movant need not show that his claim is
“resolved by” a new and retroactive rule of constitutional law, but rather that his claim “relies on” the same. See
Walker, 900 F.3d at 1016. As Judge Perry of this Court stated in Holman v. United States, “[W]ithout Johnson’s
invalidation of the residual clause, Holman would not have a claim that the ACCA does not apply to him….It is
Johnson that opened the door to successive or untimely relief such as sought here.” Holman, 2017 WL 2438821, at
*3 n. 1 (E.D. Mo. June 6, 2017) (citations omitted).

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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Movant=s Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 29) is GRANTED.
IT IS FURTHER ORDERED that the sentence imposed on September 13, 2002 is
VACATED.
IT IS FURTHER ORDERED that an Amended Judgment will be entered in Movant’s
criminal case, United States v. Timothy Caldwell, Case No. 4:01CR350 JCH.

Dated this 19th Day of February, 2019.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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